LC 
3115 



CAN THE UNITED STATES BY 
TREATY CONFER ON JAPANESE 
RESIDENTS IN CALIFORNIA 
T HE RIG H T T O AT TE N D 
THE PUBLIC SCHOOLS? 



WILLIAM DRAPER LEWIS 

Dean Zam Department, University ,/ Pennsylvania 



REPRINTED FROM THE AMERICAN LA^ REGISTER FOR FEBRUARY. 
igo7, VOL. jrj, NO. 2, 



Copyright by University of Pennsylvania 

1907 




Class 
Book, 



CAN THE UNITED STATES BY 
TREATY CONFER ON JAPANESE 
RESIDENTS IN CALIFORNIA 
THE RIGHT TO ATTEND 
THE PUBLIC SCHOOLS? 



BY 

WILLIAM DRAPER LEWIS 

Dean Law Department, University of Pennsylvania 



REPRINTED FROM THE AMERICAN LAW REGISTER FOR FEBRUjiRT^ 
igo7, VOL. 3S, NO. 2. 



Copyright by University of Pennsylvania 
1907 



LCzns" 






X 

2 



CAN THE UNITED STATES BY TREATY CONFER 

ON JAPANESE RESIDENTS IN CALIFORNIA 

THE RIGHT TO ATTEND THE 

PUBLIC SCHOOLS? 

The action of the School Board in San Francisco in 
requiring the Japanese residents of that city, who desire 
to educate their children in the public schools, to send 
them to the separate school provided by the authorities 
for the education of the children of Mongolian parents, 
raises an interesting question of the proper interpreta- 
tion of the rights conferred upon Japanese residents by 
our Treaty with Japan. The action may also raise the 
question of the extent of the treaty-making power con- 
ferred by the Constitution on the Federal Government. 

The first Article of our Treaty of Commerce and 
Navigation with Japan, the treaty of 1894, provides: 

"The citizens or subjects of each of the two high contracting parties 
shall have full liberty to enter, travel or reside in any part of the ter- 
ritories of the other contracting party. * * 

"In whatever relates to rights of residence and travel * * * the 
citizens or subjects of each contracting party shall enjoy in the ter- 
ritories of the other the same privileges, liberties and rights, and shall 
be subject to no higher imposts or charges in these respects than native 
citizens or subjects or citizens or subjects of the most favored nation." 

The last clause of the second Article is as follows: 

"It is, however, understood, that the stipulations contained in this 
and the preceding Article do not in any way affect the laws, ordin- 
ances and regulations with regard to * * * police and public 
security which are in force or which may hereafter be enacted in either 
of the two countries." 

In regard to the proper construction of this Treaty as 
applied to the action of the San Francisco School Board, 
several questions arise. 

Is the right of the inhabitants of San Francisco to have 
their children attend the public schools a right of "resi- 
dence" within the meaning of that word as used in the 
Treaty? 

Does the San Francisco School Board deny to Japanese 



2 JAPANESE RIGHTS IN PUBLIC SCHOOLS. 

residents the same "privileges, liberties and rights" of 
public school education, as it gives to her own citizens 
or the citizens of other countries, being residents of San 
Francisco, by requiring Japanese residents to send their 
children to a separate school? 

This question may be affected by the location of and 
accommodation in the separate Mongolian school of San 
Francisco, We understand that there is but one Mon- 
golian public school in the city. 

If it should be decided that, within the meaning of the 
Treaty, a right to attend a public school is a right of resi- 
dence, and that the action of the San Francisco School 
Board is a denial of "the same privileges, liberties and 
rights" in respect to public school education which are 
granted to other residents, the question would remain, 
whether the act of the San Francisco authorities could be 
justified under the clause which excepts ' ' laws, ordinances 
and regulations with regard to police and public security. " 

It appears to the writer that the main questions re- 
lating to the proper interpretation of the Treaty are the 
first two as stated. 

Should the courts decide that the action of the School 
Board did violate the true intent and meaning of the 
Treaty, they would be confronted with the further ques- 
tion: Is the Treaty constitutional? If the treaty- 
making power of the Federal Government is limited, and 
if this Treaty in conferring on Japanese residents in the 
United States the right to attend the public schools of 
a State exceeds those limits, the Treaty in this respect 
is unconstitutional, and no more the supreme law of the 
land than an unconstitutional act of Congress. The 
question, "Can a Treaty override the Constitution?" 
is to-day as absurd as the question, "Can an Act of 
Congress override the Constitution ? ' ' The treaty-making 
power, as the legislative power, must be exercised within 
those limits, if any, imposed by the Constitution. 

The difficulty is to determine the extent of the treaty- 
making power. Is it an unlimited power or is it a limited 
power; and, if limited, what are the limitations? On 



JAPANESE RIGHTS IN PUBLIC SCHOOLS. 3 

the answers given to these questions depends the validity 
of the Japanese Treaty, supposing that that Treaty does 
in terms give the right to Japanese residents in this 
country to send their children to the public schools of 
the State in which they reside, 

The discussion of the extent of the treaty-making 
power is almost wholly an academic one, the Supreme 
Court having only decided one point; namely, that the 
treaty-making power of our Federal Government is not 
confined within the limits of the legislative power of that 
government. That can be done by treaty which cannot 
be done by act of Congress. 

Thus Chief Justice Marshall, in Chirac v. Chirac, as- 
sumed that a treaty regulating the rights of foreigners 
to inherit, purchase and hold lands in Maryland, was 
constitutional, and superseded any Act of the State con- 
flicting therewith. Indeed, the constitutionality of the 
Treaty was not questioned by council or court, the 
argument and opinion being confined to its proper con- 
struction. The same assumption had already been made 
by Story. The case itself was several times confirmed 
during the time of Marshall,' while it has been ex- 
pressly followed in more recent years. That an Act of 
Congress could not regulate the right of foreigners to 
purchase and hold land in a State is beyond controversy. 
The widest possible extension of the power of Congress 
"to regulate commerce with foreign nations" would not 
give to that body the power to pass such a law. 

The conclusion reached from the cases referred to, that 
under the treaty-making power that can be done which 
Congress under its legislative power cannot do, is still 
further strengthened by the long acquiescence of all 

iThe opinion of Judge Story is that given by him in Fairfax v 
Hunters lessee, 7 Cranch's Reports, 603 (18 13); Chirac v. Chirac is 
reported m 2 Wheaton's Reports, 259 (181 7). The other cases affirm- 
ing C/tirac V. Chirac in Marshall's time are Orr v. Hodgson, 4 Whea- 
ton's Reports, 453 (1819); Hughes v. Edwards, 9 ib. 489, 496 (1824)- 
and Carneal v. Banks, 10 ih. 181 (1825). The more modem case 
confirming these cases is Hauenstein v. Lynham, 100 United States 
Reports, 483 (1879). See also opinion of Mr. Justice Field in Geofroy 
V. R^ggs, 133 tb. 258, at page 266. 



4 JAPANESE RIGHTS IN PUBLIC SCHOOLS. 

Departments of the Federal Government, and of the 
states, in extradition treaties ; treaties in which claims 
of our citizens against foreign governments have been 
confiscated, barred and satisfied; trade-mark conven- 
tions ; and treaties giving foreign consuls judicial powers 
in the United States, or United States consuls judicial 
power over American citizens in foreign lands. In all 
these treaties will be found provisions which Congress 
alone, under its legislative power, could not enact."'^ 

On the other hand no member of the Supreme Court, 
text writer, or publicist has yet taken the position that 
the treaty-making power of our Federal Government is 
absolutely unlimited. 

The three main Articles of the Constitution deal re- 
spectively with the legislative, executive and judicial 
departments. The clause conferring treaty-making 
power is in the second Article. This Article provides that 
the President "shall have power, by and with the advice 
and consent of the Senate, to make treaties, provided 
two thirds of the Senators present concur." The Con- 
stitution does not specify the subjects in regard to which 
treaties may be made. The words are general ; the Presi- 
dent and the Senate have the power to make treaties. 
There is a marked difference in this respect in the manner 
in which the second Article confers the treaty-making 
power and the way in which the first Article confers the 
power of legislation. The first Article, after providing 
for the creation of a legislative body, confers on that 
body, not the power to legislate, but the power to legis- 
late on particular subjects which are carefully enumerated. 

The powers conferred by the first Article are on their 
face legislative powers only. They neither purport to 
give nor take away any power which the President and 
the Senate may possess in respect to treaties. This fact 
is the justification for the decisions of the Supreme Court 
to which reference has been made. Shortly after the 
Constitution was adopted, when the Jay Treaty with 
England was under discussion, it was supposed by some 

^Butler, Treaty-making Power, chapter ix. 



JAPANESE RIGHTS IN PUBLIC SCHOOLS. 5 

that as the first Article conferred on Congress the power 
to regulate foreign commerce, under the treaty-making 
power no commercial treaty could be negotiated. It 
was soon perceived, however, that regulations of foreign 
commerce could be the result either of an act or a treaty, 
and that while the first article had conferred on Congress 
legislative power which enabled them to regulate foreign 
commerce, that did not prevent the treaty -making power 
from being so exercised as to produce the same result. 
Since then the proposition that the treaty-making power 
of our Federal Government is neither enlarged or con- 
tracted by the grants of legislative power in the first 
Article has never been seriously questioned. Taking 
these first two Articles of the Constitution by themselves, 
it is as clear that general treaty-making power is con- 
ferred in the second Article, as it is that limited legisla- 
tive power is conferred in the first Article. If it be ob- 
jected that the Constitution does not in express terms give 
to the Federal Government power to make any treaty it 
sees fit, it can be replied, that where those who are 
sovereigns confer on their agents one of the great powers 
of sovereignty, as the power of legislation or the power 
to make a treaty, the word "all" is not necessary to 
explain the extent of the power. The power to do some- 
thing given by a sovereign hand is the power to do it in 
any way the grantee sees fit. The argument that because 
the word "all" does not precede the word "power" in 
the clause conferring treaty-making power and that there- 
fore the power is limited, proves too much. It would 
show that the words in the second Article do not confer 
a power to make a treaty on any subject. Not only is 
the word "all" not used, but none of the subjects on 
which treaties may be negotiated are referred to. 

As in apparently unambiguous language full and un- 
limited treaty-making power is by the second Article 
conferred on the President and the Senate, the burden 
is on those who contend that the power is limited to prove 
their case. For we must remember that if the Constitu- 
tion does attempt to give to the President and Senate 



6 JAPANESE RIGHTS IN PUBLIC SCHOOLS. 

an unlimited power to make treaties, the attempt has 
been successful. There have been two theories in 
regard to the adoption of the Constitution of the United 
States; one that it was adopted by the people of the 
United States ; another that it was adopted by the states. 
The advocates of either theory, however, agree that the 
power which adopted the Constitution was competent 
to confer on the government created by the Constitution 
all the powers of sovereignty. The source from which 
the Constitution sprang is a source of unlimited power 
and authority. The people or the states who adopted 
it could give to the new government that they created 
just as much or just as little of the powers of sovereignty 
as they chose. 

Limitations on the treaty-making power, if any exist, 
may be found, either in the nature of the power, or the 
words of the Constitution. Again, limitations may possi- 
bly be implied from the fact that our Constitution was 
adopted by a free people, or may be implied from the 
very existence of the states as an intregal part of our 
Federal State. 

A moment's consideration will show that there .is noth- 
ing in the nature of the power which limits its operations 
to particular classes of subjects. A treaty is a contract 
between two nations. Treaties, if not essential to foreign 
social and commercial intercourse, are at least an im- 
portant means of fostering such intercourse. The people 
of a nation regulate their conduct towards each other 
by those customs to which they have given the force of 
law, and by legislation; but much of their conduct 
towards the people of another nation must be regulated 
by treaty. Thus, the binding rules of conduct of any 
people spring from' three sources, custom, legislation, 
and treaties. There is nothing in the nature of any of 
these sources of law which prevents any particular law 
from having its origin in any one of them. The wisdom 
of the contract expressed in the treaty is for the sovereign 
nations who are parties to it to consider. Being sovereign, 
the power to contract knows no legal limits. If, there- 



JAPANESE RIGHTS IN PUBLIC SCHOOLS. 7 

fore, full and unlimited treaty-making power is given to 
the Federal Government, by treaty anything can be done. 
There is nothing in the nature of the power to limit the 
subjects on which treaties can be made. 

Though the treaty-making power is not limited by the 
nature of the power, it is limited by the words of the 
Constitution. 

The Constitution creates a government with three 
Departments, the legislative, executive, and judicial, 
and provides to a great extent for their organization. 
It confers on each certain powers. It would seem almost 
an axiom of Constitutional Law that no one of the powers 
conferred can be so exercised as to alter the Constitution. 
"A power given by the Constitution," says Judge 
Story, "cannot be construed to authorize a destruction 
of other powers given by the same instrument. * * * 
A treaty to change the organization of the government 
or annihilate its sovereignty, to overturn its republican 
form or to deprive it of its constitutional powers, would 
be void, because it would destroy what it was designed 
to fulfill, the will of the people."* The treaty- making 
power, as all other powers of our Federal Government, 
is necessarily limited to the extent here indicated. By 
treaty we may not alter the Constitutional distribution 
of powers between the three Departments of our Federal 
Government, or confer on any Department a power not 
conferred on it by the Constitution. By treaty we may 
not agree that hereafter Congress should legislate on 
divorce, or that the treaty-making power itself should 
be executed by Congress ; or that a particular State should 
have three representatives in the Senate. 

If a treaty cannot alter the Constitution as written, 
a treaty cannot violate any specific general restriction 
on federal power which may be found in the Consti- 
tution. The first eight Amendments, for instance, are 
prohibitions against specific exercises of power. In all 
except the first, the prohibition is in terms general. The 
second Amendment does not say that "Congress shall 
not pass any law," forbidding the people to bear arms, 

3 Story on the Constitution, section 1508. 



8 JAPANESE RIGHTS IN PUBLIC SCHOOLS. 

or that "the executive shall not interfere with this right," 
but that "the right of the people to keep and bear arms 
shall not be infringed." A treaty which deprived the 
people of this right would be apparently in direct viola- 
tion of the express words of the Constitution. 

It is, however, important to note that the loth Amend- 
ment does not limit the treaty-making power. This 
Amendment provides : " The powers not delegated to the 
United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, 
or to the people." But the power to make treaties is 
expressly given to the United States by the Constitution, 
and the Constitution also expressly prohibits the States 
from exercising the treaty-making power. The power 
to make treaties, therefore, is not one of the powers 
"reserved to the States respectively, or to the people," 
mentioned in this Amendment. 

Again, it is important to note that the principle that 
a treaty cannot alter the Constitution as written, cannot 
be extended to prohibit treaties dealing with subjects 
not referred to in the Constitution. It may be that there 
are limitations on the treaty-making power, arising out 
of the fact that the Constitution was adopted by a free 
people, or from the very existence of the states as a neces- 
sary part of the Federal system. But such limitations, 
if they exist, do not come from the words of the Consti- 
tution. For instance, it is admitted that a treaty which 
conferred on Congress the right to regulate marriage and 
divorce would be unconstitutional. But whether the 
marriage of aliens in the United States could be regulated 
by treaty is a radically different question. If the treaty- 
making power cannot deal with the subject of the marri- 
age of aliens in the United States, it is not because of 
anything expressed in our Constitution. The Constitu- 
tion confers on Congress legislative power over certain 
subjects. The marriage and divorce of natives or aliens 
in a State of the United States is not a subject on which 
Congress has been given power to legislate. To confer 
such power on Congress by treaty would alter the Consti- 



JAPANESE RIGHTS IN PUBLIC SCHOOLS. 9 

tution as written. But to regulate divorce by treaty- 
does not alter the Constitution as written. As has been 
pointed out, the Constitution gives to the President and 
the Senate the power to make treaties. It does not say 
that the marriage and divorce of aliens in the United 
States shall not be regulated by treaty. There is no 
clause in the Constitution which such a treaty would 
violate. To say that we have not given the power to 
legislate on divorce to Congress and therefore that it 
may be presumed that it was not intended to confer on 
the President and Senate the power to regulate the sub- 
ject by treaty, is to take the position that the grants of leg- 
islative power limit the treaty-making power ; a position 
which has been, as we have seen, expressly repudiated by 
the Supreme Court. If, therefore, there is no power to 
make a treaty on the subject, the want of power must 
be due, not to anything expressed in the Constitution, but 
to some implied limitation on the treaty-making power. 

The principles on which we would have to test the 
validity of a treaty on the marriage and divorce of aliens 
in the United States, also applies to the Treaty under 
discussion. Admitting that our Treaty with Japan pro- 
vides that Japanese residents shall have a right to at- 
tend the public schools of a State, it is evident that such 
treaty does not violate any clause of the Constitution as 
written. Such a treaty does not confer on Congress 
legislative power over the state schools. It does not 
increase or decrease legislative or executive power as 
found in the Constitution or violate any of its express 
prohibitions. The right of the Federal Government to 
adopt a treaty of the character indicated, can only be 
denied by showing that such a treaty violates an implied 
limitation on the treaty-making power. 

The people of the United States are organized in a 
Federal State. An implied limitation on a power dele- 
gated to the Federal Government must arise out of the 
existence of some implied reserved right in the people 
of the United States, or out of the existence of some 
implied reserved right in the states considered as cor- 
porate entities. 



lO JAPANESE RIGHTS IN PUBLIC SCHOOLS. 

We may first ask: Are there any implied reserved 
rights of the people of the United States not mentioned 
in the Constitution? Our Constitution was adopted by 
a free people and was intended for their government. 
The first eight Amendments specify certain rights of the 
people of the United States. The rights specified tend 
to protect individual liberty and the republican form of 
government. Following these Amendments the 9th 
Amendment provides: "The enumeration in the Con- 
stitution of certain rights shall not be construed to deny 
or disparage others retained by the people. " The wording 
of this Amendment presupposed the existence of reserved 
rights in the people of the United States not mentioned 
in the Constitution. There are, therefore, implied limi- 
tations on the treaty-making power and on every other 
power of the Federal Government arising out of the fact 
that the Constitution was adopted by a free people im- 
bued with the importance of individual liberty and firmly 
believing in democratic institutions. It is unnecessary 
to discuss specific illustrations of possible violations of 
these implied limitations on the treaty-making power, 
for a treaty which gives to aliens the right to attend the 
public schools of a State does not violate any possible 
rule of law designed to protect the liberty of the citizens 
of the United States or the republican form of govern- 
ment.* 

If the Treaty under discussion does not violate any 
part of the Constitution as written, or any implied limi- 

4Mr. Justice White in his concurring opinion in Downs v. Bidwell, 
182 United States Reports, 244 (1900), makes an elaborate investi- 
gation of implied limitations on the treaty-making power arising 
from the implied reserved rights of the citizens of the United States. 
In the course of his interesting opinion he points out that, at the 
adoption of the Constitution the United States consisted of a definite 
nttmber of persons inhabiting a definite territory, all of which terri- 
tory was not included in the territory belonging to the original thir- 
teen states. From this fact, coupled with the free character of our 
institutions, be believes that the Federal Government is impliedly 
restrained from parting with an inch of the territory of the United 
States which was part of the United States at the adoption of the Con- 
stitution or which has since been incorporated into the United States, 
irrespective of whether such territory is or is not part of a State. He 
also believes that while territory, and the people inhabiting it, can be 



JAPANESE RIGHTS IN PUBLIC SCHOOLS, II 

tation on the treaty-making power arising out of the 
implied reserved rights of the citizens of the United 
States, the single question remains: Does it violate any 
implied limitation on the treaty-making power arising 
out of implied reserved rights of the States? 

If the treaty-making power is necessarily limited by 
the nature of a Federal State, then it will be necessary 
to go outside the Constitution to ascertain the nature 
of those limitations, and whether they prohibit the 
Central Government from making the treaty in question. 
On the other hand if there is nothing in the nature of a 
Federal State, in which the Central Government has all 
the treaty-making power, to impose implied restrictions 
on the subjects which may be dealt with under that 
power, such an investigation will be unnecessary. 

The broad question whether any limitations on the 
treaty-making power arise of necessity from the Federal 
nature of our State has never been thoroughly discussed. 
But the most important single question which tests the 
question of the existence of such a limitation, the right 
of our Federal Government by treaty to cede the terri- 
tory of a State without its consent, has been the subject 
of many positive and conflicting assertions. Chancellor 
Kent in his Commentaries ; Justice McLean in LatUmore 
V. Poteet, and Mr. Butler in his work on the Treaty- 
Making Power, are all of the opinion that such a power 
exists. On the other hand, Woolsey in his work on In- 
acquired by the United States by treaty, the treaty-making power 
cannot be so used as to incorporate the acquired territory into the 
United States, or make the inhabitants of such territory citizens of 
the United States. If such incorporation of territory or naturahza- 
tion of citizens is to take place, the imphed or express consent of 
Congress must be obtained. 

From this opinion two things are clear. First, the absence of power 
in the Federal Government to cede any territory of the United States 
is not ascribed by Mr. Justice White to the fact that we are a Federal 
State. The same limitation on the power of our national government 
would exist had we never had separate states, but as one people had 
created a national government by the adoption of the Constitution. 
Second, that there is nothing in Mr. Justice White's opinion inconsis- 
tent with the power of the Federal Government by treaty to confer 
on Japanese residents the right to attend the public schools of a state. 
Such treaty does not make the Japanese citizens or confer on them 
political rights, or incorporate territory into the United States. 



12 JAPANESE RIGHTS IN PUBLIC SCHOOLS. 

ternational Law, and the late Justice Field of the Supreme 
Court, deny the power.^ 

The greater power includes the less. If it can be shown 
that there is nothing in the nature of a Federal State to 
prevent the treaty-making power from ceding part or 
all of the territory of a State to a foreign power, there is 
certainly nothing in the nature of such a State to prevent 
the subjects of a foreign power from being given by 
treaty the right to attend the public schools of the State. 
In the second case a State is merely required to devote 
a part of its property, set aside for the education of native 
residents, to the education of foreign residents; but in 
the first the State itself is destroyed. 

The sole force which creates confederacies is usually 
pressure from abroad. The separate states realize that 
as independent units they cannot continue to exist. A 

sThe authorities spoken of in the text, as in favor of the power 
are: Kent's Commentaries, vol. i, 167, note b; Lattimore v. Poteet, 
14 Peter's Reports, 4 (1840), at pages 13, 14; Butler's Treaty-Making 
Power in the United States, Chapter XVI. Those given as opposed 
to the power are: Woolsey's Introduction to the Study of Interna- 
tional Law, section 103, p. 161. Opinions of Mr. Justice Field in Fort 
Leavenworth R. R. Co. v. Lowe, 114 United States Reports, at pages 
540, 541; and in Geofroy v. Riggs, 133 ib, at page 267. 

As has been pointed out in note 4, Mr. Justice White denies the 
power of the Federal Government to cede any territory of the United 
States, but he does not take this position because of any reserved 
right in the States. 

It has been often asserted that Webster was of the opinion that 
the Federal Government could not cede the territory of a State with- 
out its consent. When questions arose over the northeastern bound- 
ary in Maine between Great Britain and the United States, the Fed- 
eral Government asked Maine and Massachusetts to appoint commis- 
sioners to co-operate with the Federal Government, expressly stat- 
ing that no treaty would be submitted to the Senate unless it receive 
the unanimous approval of the State Commissioners. Webster, at 
the time Secretary of State, wrote the letters directed to the Governors 
of Maine and Massachusetts, inviting them to appoint Commissioners. 
In these letters he states that it is the duty of the Federal Government 
not to take action with6ut the consent of the two states whose rights 
are more immediately concerned. But the legal duty of the Federal 
Government and the legal right of the States are not discussed by 
Webster. In view of the then existing relations between the adminis- 
tration and the Senate, it was important to secure the co-operation 
of those states likelj/^ to be affected by the proposed boundary Treaty, 
before actually negotiating such a treaty, if the Treaty when nego- 
tiated was to receive the necessary two-thirds vote in the Senate. 

The letters referred to will be found in Webster's Works, vol. VI, 
pages 272, 273. See also Webster's defence of the Treaty, ib., vol. 
V, page 98. 



JAPANESE RIGHTS IN PUBLIC SCHOOLS, 1 3 

Federal State owes its origin to this desire for protection 
from foreign aggression on the part of the individual 
states, plus a desire for untrammelled interstate inter- 
course. Thus in a Federal State, the necessity for pre- 
senting a united front to foreign nations,while not the sole, 
is a prime cause of the very existence of the State itself. 

The separate states of our union, for instance, could 
not exist as separate nations. The weaker would become 
the prey to the stronger, the strongest would be open to 
foreign insult and aggression. This is true to-day; it 
was true at the time of the adoption of the Constitution. 
The people of South Carolina by entering the union, or 
the people of California by being in the union, are much 
more likely to be effectually protected from foreign in- 
vasion or personal insult in their dealings with foreigners, 
than if these states were sovereign and independent. 

Protection from foreign aggression, therefore, was one 
of the principle causes which led to the formation of our 
union. And it has been asked: Is there not from this 
fact an implied reservation on any power granted to the 
Federal Government that it shall not be so used as to 
destroy one of the very purposes for which the State 
consented to join the Union? Others go further, and 
say that as the regulation of a state's internal affairs by 
the Federal Government was evidently not one of the 
objects of the Union, any power granted to the Federal 
Government cannot be so exercised as to regulate what 
is rather indefinitely called the * ' reserved police rights of 
the States."*^ It is assumed that carefully limited 

6The idea that the treaty-making power or any power delegated to 
the United States cannot be exercised so as to regulate that which 
the States may regulate under their reserved power was of course 
often expressed in the ante bellum period. See opinion of Mr. Justice 
Daniel in the License Cases, 5 Howard's Reports, 504 (1847) 3-* page 
613; the dissenting opinion of Chief Justice Taney in the Passenger 
Cases, 7 Howard's Reports, 283, (1849) ^^ pages 465, 466. These 
opinions reflect the ideas of Calhoun. See Calhoun's Works, edited 
by Cralle, vol. i, pages 454, 455. In our own day Mr. John Randolph 
Tucker has expressed somewhat similar views. See Tucker on the 
Constitution of the United States, vol. 2, section 354. These views 
are directly contrary to the opinion of Chief Justice Marshall in Gib- 
bons V. Ogden, 9 Wheaton's Reports, i, (1824) at page 204, and are 
opposed to the current of modern authority. 



14 JAPANESE RIGHTS IN PUBLIC SCHOOLS, 

legislative power and largely unlimited treaty-making 
power in the same government is an absurdity. 

That our Constitution should carefully guard and limit 
the legislative power of the Federal Government is most 
natural. The regulation of interstate, not state com- 
merce; protection to the United States as a nation, not 
regulations of the internal affairs of the States, are ob- 
jects of the union. General legislative power in the 
Federal Government was unnecessary to accomplish the 
ends in view. But the power to deal with foreign nations 
as a unit; to secure as a unit in time of peace the best 
commercial treaties possible ; as a unit to make war, if 
war was necessary ; and as a unit to make the best peace 
possible, if peace was necessary; all these were prime 
objects of the union, and they are objects which cannot 
be obtained by conferring a treaty-making power limited 
and fettered in the way it was both wise and feasible that 
the Federal legislative power should be fettered. Take 
even the power to part by treaty with the territory of a 
State. The probability that the new nation would sooner 
or later be engaged in war was present to the minds of 
those who adopted our Constitution. Wars are ended 
by treaties of peace. The spectacle of a nation being 
obliged to purchase peace by the cession of territory is 
not rare. Before, as well as since, the adoption of our 
Constitution, other nations have often had to purchase 
peace by the cession of territory. Germany demanded 
Alsace and Lorraine as the price of withdrawing their 
troops from Paris. The experience of France is not 
unique. Though we are now a powerful nation removed 
probably for many decades to come from the fear of 
foreign invasion, we have in the course of our short 
history seen a foreigfi power in possession of our national 
capitol. If by entering a union with other States, a State 
renders it legally possible for the Central Government 
to sacrifice her territory or her complete control over her 
police arrangements to protect the territory of other 
States, she also gains the reciprocal advantage of being 
able to save herself and the great majority of the other 



JAPANESE RIGHTS IN PUBLIC SCHOOLS. 1 5 

States by sacrificing the territory of a sister State. Such 
an arrangement is not one-sided. 

Take the specific case under consideration. The power 
to admit or exclude aliens from the territory of a State 
unquestionably resides in our Federal Government. The 
Federal Government has the exclusive power of natu- 
ralization. When the States have already given to the 
Central Government the power to admit aliens and make 
them citizens, entitled to all the rights and privileges of 
citizenship, there is nothing unreasonable in their also 
conferring on that government the power to give aliens 
after admission to a State and before naturaHzation, the 
right to be admitted to her public schools. 

To allow a bare majority of the Federal Legislature to 
make a treaty which might have these results would have 
been unwise. Our Constitution has, therefore, required 
that at least two thirds of the Senate present shall be 
required to ratify a treaty. The Senate is that body 
which primarily represents the States. Such a provision 
has proved by experience an ample protection against 
the unwarranted sacrifice by treaty of the interest of any 
one State. To have required the unanimous consent of 
the Senate would have rendered it practically impossi- 
ble for any treaty to be negotiated. 

The fact that we are a Federal State, that we have 
only conferred on our Federal Government Hmited legis- 
lative power, that the cession of territory or the regula- 
tion of the internal affairs of the States was not an object 
for which our union was formed, or for which it exists, 
does not lead to the conclusion that the treaty-making 
power is impliedly limited by a rule which would prevent 
either the cession of the territory of a State to a foreign 
power, or an interference by treaty with the poHce powers 
of the States. On the contrary, to impose implied limits 
of this kind would seriously interfere with one of the 
great objects of the union— the capacity to deal as one 
people with foreign nations. 

It is, of course, admitted that the mere fact that the 
power claimed to exist in our Federal Government is 



l6 JAPANESE RIGHTS IN PUBLIC SCHOOLS. 

necessary to accomplish a principal object of the Union, 
is not a reason why we should assume that it has been 
conferred. But where a power, as the treaty-making 
power, has been in general terms conferred on the Federal 
Government, to limit the power, not by any words in 
the Constitution but by a limitation implied from the 
supposed nature of our Federal State, it is necessary to 
show affirmatively that the limitation proposed arises 
from the very nature of the State itself. If this cannot 
be done, but on the contrary an examination of the 
forces creating our Federal State show that one of the 
prime objects of our union would be defeated by the 
proposed implied reservation, no such reservation may 
be implied. 

If these conclusions are correct, our Federal Govern- 
ment has under the Constitution power to make a treaty 
with Japan or any other foreign nation, giving to the 
subjects or citizens of the foreign nation residing in one 
of the States the right to attend the public schools of the 
State on the same terms as native or naturalized citizens. 
In the Constitution itself we find nothing to restrain the 
President from negotiating, and two thirds of the Senate 
from ratifying such a treaty. It is not opposed to the 
fundamental characteristics of free republican govern- 
ment ; it does not interfere with the liberty of the citizens 
of the United States ; and finally, there is nothing in the 
nature of our Federal State from which we may imply 
any limitation on the treaty-making power not found in 
the words of the Constitution. Whether we have actually 
made such a treaty with Japan is another question. 
Whether, admitting that we have made such a treaty, 
it was a proper or wise treaty to make is foreign to this 
discussion. 

A power may be abused by those who possess it, but 
this in itself is no reason for denying the existence of the 
power. The confusion which has existed on the subject 
of the treaty-making power in our Constitution has 
arisen largely through confusing the letter of the Constitu- 
tion with the spirit which should animate those respon- 



JAPANESE RIGHTS IN PUBLIC SCHOOLS. 1 7 

sible for the conduct of our State and Federal Govern- 
ments. There are many acts which our Federal or State 
Governments may constitutionally do which would un- 
questionably violate the spirit of the agreement which 
makes us a nation. If the Federal Government should 
arbitrarily barter away the territory of a State without 
its consent, no one doubts that the State affected would 
be morally justified in resisting the transfer by force. 
But the possible arbitrary exercise of a power while it 
may morally justify revolution, does not prove, or even 
tend to show, that the power does not exist. There is 
no proposition of our Constitutional law more firmly 
established than this : Given a power in a Department 
of the Federal Government, and that Department, not 
the court, is the sole judge of the conditions under which 
the power should be exercised. If by treaty we have 
not power to adjust the boundary between the United 
States and a foreign state, without the consent of the 
particular State whose territory is affected, the possi- 
bility of warding off a war by such an adjustment would 
not legally justify making such a treaty without the 
concurrence of the State. The recklessly selfish attitude 
of the particular State involved would be no legal defense 
for such a treaty. On the other hand, if the power exists 
the President and Senate are the sole judges of the time 
and manner in which it may be exercised. 

There is a letter of the Constitution and a spirit of the 
Constitution. The Courts have always recognized that 
their concern is with the Constitution as written. If 
this rule was broken and our judges permitted themselves 
to wander into the uncertain realm of the spirit of the 
Constitution we would soon have acts and treaties set 
aside by Courts because the judges beHeved their provi- 
sions were unnecessary. 

The spirit of our Constitution is plain. It is that in 
the exercise of what may be an undoubted power the 
members of the Federal or State Governments should 
remember that the whole should as far as possible avoid 
injuring a part, and that the part should as far as may be 



l8 JAPANESE RIGHTS IN PUBLIC SCHOOLS. 

avoid injuring the whole. The cultivation of such a 
spirit is essential to our preservation as a Federal State. 
But whether it is or is not violated by a particular act 
or treaty is for the body which passes the one, or for the 
President and Senate which negotiates and confirms the 
other, alone to decide. 

Wm. Draper Lewis. 
University op Pennsylvania. 



